nationalconstitutionalismarchive

National Constitutionalism
An Originalist and Structuralist Analysis of Border Policy, Immigration and
Naturalization Law, and the Fourteenth Amendment

Preston Terry Damsky
Contents
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Introduction

This paper proposes that constitutional governance relies upon several
structural principles and implicit assumptions—rooted in our national history and
the Constitution’s text—about the significance of “We the People” in the
constitutional scheme. This descriptive claim, coupled with a normative claim that
these principles and assumptions should be preserved and aggressively asserted, is
termed “national constitutionalism.” National constitutionalism posits that,
regardless of certain textual provisions with a seemingly open-ended scope of
application, the Constitution’s establishment of a nation-state under the sovereignty
of the People must be considered its paramount purpose which may not be
permissibly undermined by any governmental acts or omissions absent the direct and
unambiguous consent of the People.! Originalism’s two dominant varieties—original

1 In this discussion, the phrase “the People” will be understood as being coterminous with the
phrase “the nation.” See AZAR GAT WITH ALEXANDER YAKOBSON, NATIONS: THE LONG HISTORY AND
DEEP ROOTS OF POLITICAL ETHNICITY AND NATIONALISM 18 (2012) (defining “nation” as a population
with a sense of shared kinship, culture, common identity, history, and fate, that is either politically
sovereign or actively striving to achieve political self-determination and self-government); CARL
SCHMITT, CONSTITUTIONAL THEORY 127 (Jeffrey Seitzer, ed. & trans., 2008) (noting that “[nJation and
people are often treated as equivalent concepts” but that “[nation] denotes, specifically, the people as
a unity capable of political action, . . . while the people not existing as a nation is somehow only
something that belongs together ethnically or culturally, but it is not necessarily a bonding of men
existing politically”).

intent originalism and original public meaning originalism2—both suggest the
propriety of applying national constitutionalism to at least one area of law where
courts have heretofore been inclined to view the so-called “political branches” (i.e.,
Congress and President) as possessing plenary, nonjusticiable authority:
immigration and naturalization policy. Additionally, the logic of national
constitutionalism suggests an urgent need to overturn much of the Court’s modern
Fourteenth Amendment jurisprudence, and even consider the constitutionality of the
Fourteenth (and Fifteenth) Amendments entirely.

The Originalist Foundations of National Constitutionalism

Original intent originalism “holds that the intent of the author of words or
language determines the meaning of those words.”4 Original intent originalists
defend this exegetical method by arguing that the true meaning of any authored
language is inseparable from the author’s intent. McGinnis & Rappaport contend
that original intent originalism’s advantages are non-availing when the language at
issue has multiple authors because “the individual intentions of each author might
differ” and it is possible that “a single meaning was shared only by a plurality.”®
Moreover, this interpretive problem is compounded when the language’s meaning is
unexplained by the authors and where “legislators cannot easily determine the
meaning of a provision upon which they are voting.”’ Nonetheless, McGinnis &
Rappaport argue that these problems are resolvable via careful application of
“background interpretive rules.”8 While McGinnis & Rappaport are correct that
recourse to these rules may be useful and appropriate where no easily discernible,
express consensus exists regarding the original meaning of multi-authorial language,

2 John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of
Interpretation and the Case Against Construction, 103 Nw. U. L. REV. 751, 758 (2009) (describing
these two varieties as “the two leading positive theories” of originalist interpretation).

3 See, e.g., California v. United States, 104 F.3d 1086, 1090-91 (9th Cir. 1997) (holding that
California’s plea for relief under the Guarantee Clause due to the federal government’s failure to
secure the southern border “presents a nonjusticiable political question” by noting that “[t]he Supreme
Court has held that the political branches have plenary powers over immigration” and explaining
further that “[flor this Court to determine that the United States has been ‘invaded’ when the political
branches have made no such determination would disregard the constitutional duties that are the
specific responsibility of other branches of government, and would result in the Court making an
ineffective non-judicial policy decision”) (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977)).

4 McGinnis & Rappaport, supra note 2.

5 Id. at 759 (recounting that “[Richard Kay] argues that readers do not understand texts

independently of real or presumed human intentions... [rlather, meaning is fundamentally connected
with a human agent who intended to communicate something”).

6 Td.

7 Id. at 760.

8 Id. (“The possibility of multiple meanings would be significantly reduced or eliminated if
legislators understood that the words of a law would be interpreted in accordance with applicable
rules, such as accepted word meanings, grammar, and interpretive rules.”).

2

these rules are less necessary (if not superfluous and potentially obfuscatory) where
the language’s meaning was clearly expressed when authored and there was a
unanimous, or at least clear majority, agreement regarding this meaning.

In contrast to original intent originalism’s subjective, authorial-based analysis,
original public meaning originalism focuses on “how the words of the document would
have been understood by a competent and reasonable speaker of the language at the
time of the document’s enactment.”? Thus, this method may be considered an
objective mode of analysis, albeit one tied to the historical context of the language’s
genesis. Citing Barnett’s analogy of the Constitution as a contract, McGinnis &
Rappaport argue that their reliance on background interpretive rules is apropos
because the objective theory of contract interpretation relies on the objective meaning
of words rather than parties’ subjective intentions.!° McGinnis & Rappaport note that
although many contractual terms are interpreted according to their ordinary
meaning, “it is a legal interpretive rule that determines whether a term should
receive its ordinary or legal meaning.”!! However, it is self-evident that where there
is no difference between the ordinary meaning of language and its legal meaning,
recourse to such a legal interpretive rule is unnecessary.

Like Vermeule’s theory of common-good constitutionalism, national
constitutionalism looks to the Preamble to clarify the Constitution’s raison d’étre.
However, rather than look as Vermeule does to the Preamble’s “sweeping generalities
and famous ambiguities” to assert that the Constitution may be given a moralistic,
anti-libertarian reading that permits the legislation of conservative morality,!”
national constitutionalism instead focuses on the Preamble’s clear statement of who
has “ordainled] and establishled]” the constitutional contract (“We the People”) and
who are its intended beneficiaries (“ourselves and our Posterity”).!3 In doing so,
national constitutionalism insists upon the conceptual validity of the principal-agent
analogy in order to clearly delineate the People as the sovereign constituent power
within the constitutional hierarchy, with the constituted power of the Constitution
and its branches of government occupying an inferior, subordinate rule.!4 Thus,

9 Id. at 761.

10 Td. at 762 (citing RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 100 (2004)).

11 Jd. at 763.

12 Adrian Vermeule, Beyond Originalism, The Atlantic (Mar. 31, 2020),
https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/ (arguing
that “the Constitution’s preamble, with its references to general welfare and domestic tranquility, to
the perfection of the union, and to justice” is “an obvious place to ground principles of common-good
constitutionalism,” and that “words such as freedom and liberty need not be given libertarian readings;
instead they can be read in light of a better conception of liberty as the natural human capacity to act
in accordance with reasoned morality”) (emphasis in original).

13U.S. CONST. pmbl.

14 See Mila Versteeg & Emily Zackin, Constitutions Unentrenched: Toward an Alternative Theory
of Constitutional Design, 110 AM. POL. SCI. REV. 657, 658 (“Those who conceptualize constitutionalism
as a form of contracting describe the people as a ‘principle,’ which, in creating a representative
government, has employed ‘agents’ to better realize its ends.”); Luigi Corrias, Populism in a
Constitutional Key, 12 EUR. Const. L. REV. 6, 15 (2016) (describing the nation as the “bearer” of

3

national constitutionalism applauds and emphasizes the Supreme Court’s long-held
and oft-repeated acknowledgement of popular sovereignty as forming the bedrock
of—and pre-dating!5—the present constitutional order.1!6

Crucially, national constitutionalism rests in large part upon an originalist
analysis of the meaning of the phrase “the People.” The theory posits that although
the People were an identifiable entity capable of political action prior to the
ratification of the Constitution, the ratification process itself—and the political
advocacy which propelled ratification forward—produced the controlling definition of
the People for the purposes of constitutional interpretation. Like America’s earliest
jurists, national constitutionalists must look to The Federalist for guidance in clearly
formulating this definition.!” Those expounding national constitutionalism may take
pride in the fact that they need not look long therein to find relevant authority. In
The Federalist No. 2, John Jay explains that the Americans are:

[A] people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same principles
of government, very similar in their manners and customs, and who, by
their joint counsels, arms, and efforts, fighting side by side throughout

constituent power, whereas “the constitution, legislature, executive, and judiciary” which “ultimately
derive their power from the nation” are the constituted power).

15 See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (“it is the Right of the People to
alter or to abolish [government], and to institute new Government, laying its foundation on such
principles and organizing its powers in such form, as to them shall seem most likely to effect their
Safety and Happiness.”).

16 See, e.g., Chisholm v. Georgia, 2 U.S. 419, 470-71 (1793) (“"[T]he people, in their collective and
national capacity, established the present Constitution ... in establishing it, the people exercised their
own rights, and their own proper sovereignty"); Marbury v. Madison, 5 U.S. 137, 176 (1803) (“That the
people have an original right to establish, for their future government, such principles as, in their
opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric
has been erected.”); Barron v. City of Baltimore, 32 U.S. 243, 247 (1833) (“The constitution was
ordained and established by the people of the United States for themselves, for their own government
... The people... framed such a government... as they supposed best adapted to their situation and
best calculated to promote their interests.”); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
(“Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our
system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains
with the people, by whom and for whom all government exists and acts.”); Carter v. Carter Coal Co.,
298 U.S. 238, 296 (1936) (“[Tlhe Constitution itself is in every real sense a law—the lawmakers being
the people themselves, in whom under our system all political power and sovereignty primarily resides,
and through whom such power and sovereignty primarily speaks.”); Afroyim v. Rusk, 387 U.S. 253,
257 (1967) (“In our country the people are sovereign and the Government cannot sever its relationship
to the people by taking away their citizenship.”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (relying on
the presumption that the United States is “a republic where the people are sovereign”); Gamble v.
United States, 587 U.S. 678, 688 (2019) (“[O]ur Constitution rests on the principle that the people are
sovereign”).

17 Cohens v. Virginia, 19 U.S. 264, 418 (1821) (Marshall, C.J.) (noting that “[t]he opinion of the
Federalist has always been considered as of great authority” in part because “the part two of its
authors performed in framing the constitution, put it very much in their power to explain the views
with which it was framed”).

a long and bloody war, have nobly established general liberty and
independence. !8

In The Federalist No. 14, James Madison placed particular emphasis on the People’s
common ancestry and shared experience of enduring and emerging triumphant from
the recent revolutionary struggle, arguing that “the kindred blood which flows in the
veins of American citizens, the mingled blood which they have shed in defense of their
sacred rights, consecrate their Union, and excite horror at the idea of their becoming
aliens, rivals, enemies.”!9 Furthermore, Madison called upon Americans to “[hlearken
not to the unnatural voice which tells you that [Americans], knit together as they are
by so many cords of affection, can no longer live together as members of the same
family; ... [and] can no longer be fellow citizens of one great, respectable, and
flourishing empire.”2° The authors of The Federalist were not ashamed in asserting
that the People possessed an exclusive, ancestral identity which should be jealously
guarded. Indeed, they believed that it was a fundamental aspect of “human nature .
.. that its affections are commonly weak in proportion to the distance or diffusiveness
of the object;” and thus, “a man is more attached to his family than to his
neighborhood, to his neighborhood than to the community at large.”2! Not only was a
political union necessary in order to prevent “a band of brethren, united to each other
by the strongest ties” from being “split into a number of unsocial, jealous, and alien
sovereignties,” but it was those “strongest ties” which made union possible in the first
place.22 The American nation served as the foundation of the American state, and the
state, in turn, functioned to preserve what Schmitt would later call the “substantial
equality” or “homogeneity” of the nation.2® Given such views, the authors of The

18 THE FEDERALIST NO. 2, at 38 (John Jay) (Clinton Rossiter ed., 1961). See also id. at 38-39 (“To
all general purposes we have uniformly been one people... As a nation we have made peace and war;
as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made
treaties, and entered into various compacts and conventions with foreign states.”).

19 THE FEDERALIST NO. 14, at 104 (James Madison) (Clinton Rossiter ed., 1961).

20 Td. at 103-104.

21 THE FEDERALIST NO. 17, at 119 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

22 THE FEDERALIST NO. 2, supra note 18, at 38.

23 SCHMITT, supra note 1, at 258-59 (arguing that “[plolitical democracy . . . cannot rest on the
inability to distinguish among persons,” but can only survive “on the quality of belonging to a
particular people. This quality of belonging to a people can be defined by very different elements (ideas
of common race, belief, common destiny, and tradition). The equality... . thus orients itself internally”
and when such a democracy produces a state wherein citizens possess equal rights and obligations
“democratic equality is a substantial equality.”) (emphasis in original). See also Heiner Bielefeldt, Car/
Schimitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism, 1n LAW AS POLITICS:
CARL SCHMITT’S CRITIQUE OF LIBERALISM 23, 27 (David Dyzenhaus ed., 1998) (“What ultimately counts
in a genuine democracy, [Schmitt] says, is the sovereign authority of the collective unity of the people,
a unity facilitated by, and resting on, some sort of ‘substantial homogeneity.”); ALAN GIBSON,
INTERPRETING THE FOUNDING 62-63 (2006) (describing how “the concept of federalism within
American republicanism retained a substantial residue of the belief that the republican form of
government could exist only ... with a homogeneous . . . citizenry” and “stress on a homogeneous
citizenry also was used to promote restrictive naturalization policies”).

5

Federalist were clearly nationalists.24 Thus, under original intent originalism’s
subjective, authorial-based mode of analysis, the phrase “the People” and the
Preamble’s reference to “ourselves and our Posterity” (with “ourselves” plainly being
synonymous with “the People” and “ our Posterity” being the posterity of “the People”)
must be viewed through a nationalist lens.

The homogenous nature of the People was also clearly understood by the
contemporaries of Jay, Madison, and Hamilton. In explaining his optimism regarding
the prospect of enduring union, John Dickinson pointed to the fact that “the people
were so drawn together by religion, blood, language, manners and customs,
undisturbed by former feuds or prejudices.”25 Other Founders were explicit in
framing the common ancestry and blood of the People as a racial matter. In the debate
over the slave trade during the constitutional convention of 1787, Roger Sherman
opposed the introduction of African slaves into the United States on the grounds that
Black slaves “prevent the emigration of whites, who really enrich and strengthen a
country.”26 Charles Pinckney, in the 1821 congressional debate on the Missouri
compromise, clarified through his interpretation of the meaning of the Article IV
Privileges and Immunities Clause,?’ which he claimed to have written, that:

[A]t the time I drew that constitution, I perfectly knew that there did
not then exist such a thing in the Union as a black or colored citizen, nor
could I then have conceived it possible such a thing could ever have
existed in it; nor... do I now believe one does exist in it . . .28

Pinckney went on to explain that belonging to the White race was an enduring
prerequisite for becoming an American citizen.22 Perhaps no one more
unambiguously asserted that the nation was unalterably monoracial than Thomas
Jefferson. Jefferson claimed to support abolition but believed that Blacks could not

24 See supra note 1 (explaining how “the People” and “the nation” are coterminous phrases).

25 See John Dickinson, “Fabius” (John Dickinson] The Letters: VII-IX, in FRIENDS OF THE
CONSTITUTION: WRITINGS OF THE “OTHER” FEDERALISTS 1787-1788 492 (Colleen A. Sheehan & Gary L.
McDowell eds., 1998).

26 The Debate in the Convention of 1787 on the Prohibition of the Slave Trade, N.Y. TIMES ARCHIVE
(Nov. 24, 1860), https:/;www.nytimes.com/1860/11/24/archives/the-debate-in-the-convention-of-1787-
on-the-prohibition-of-the.html.

27 U.S. Const. art. IV, § 2, cl. 1 (“The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.”).

28 37 ANNALS OF CONG. 1134 (Gales and Seaton, 1855) (Feb. 13, 1821) (statement of Rep. Charles
Pinckney).

29 Td. at 1134-85.

be made citizens due to the risk of interracial conflict®° and miscegenation.?! It was
Jefferson’s dream to see the United States “cover the whole Northern, if not the
Southern continent with a people speaking the same language, governed in similar
forms, & by similar laws” and he could not “contemplate, with satisfaction, either blot
or mixture on that surface.”®2 That Jefferson was associated with the Anti-
Federalists®? further supports the proposition that the exclusive, racial nature of the
People was the consensus viewpoint among the founding generation, regardless of
their political leanings or partisan affiliation.?4

Of the commonalities between Americans Jay observed in The Federalist No.
2, clearly the most important to the founding generation was the fact that Americans
shared a common ancestral heritage. Furthermore, the Founders strongly believed
Americans must continue to share that common ancestral heritage. To that end,
before the ratification of the Bill of Rights, the first Congress passed the 1790
Naturalization Act which limited naturalization to “any alien, being a free white
person, who. . . is a person of good character” upon their “taking the oath or
affirmation prescribed by law, to support the constitution of the United States.”35
That act was promptly passed and signed into law pursuant to Congress’
constitutionally granted power to “establish a uniform Rule of Naturalization.”36 The
Founders acknowledged immigration was needed to grow America’s population,
expand her frontiers, and burgeon her power. Indeed, one of the grievances outlined
in the Declaration of Independence was that the Crown prevented the “population of

30 THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 145 (Frank Shuffelton, ed., Penguin
Books 1999) (1785) (arguing that Blacks could not be made citizens because White prejudice and “ten
thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real
distinctions which nature has made; and many other circumstances, will divide us into parties, and
produce convulsions which will probably never end but in the extermination of the one or the other
race”).

31 Jd. at 151 (“Among the Romans emancipation required but one effort. The slave, when made
free, might mix with, without staining the blood of his master. But with us a second is necessary,
unknown to history. When freed, he is to be removed beyond the reach of mixture.”).

32 Letter from Thomas Jefferson to James Monroe (Nov. 24, 1801), in 35 THE PAPERS OF THOMAS
JEFFERSON, Aug. 1—Nov. 30, 1801, at 718 (Barbara B. Oberg, ed., Princeton University Press 2008),
https://founders.archives.gov/documents/Jefferson/01-35-02-0550.

33 But see Michael J. Faber, Thomas Jetferson, Federalist, 128 VA. MAG. HIST. & BIOGRAPHY 282,
283 (2020) (acknowledging that “[blecause Jefferson advocated adding a bill of rights to the proposed
Constitution, and because he later became the chief figure in the opposition party in the 1790s, he is
easy to mistake for an Anti-Federalist. He is often identified as such in history textbooks and other
places;” but nonetheless arguing that “Jefferson, though he had his doubts, clearly and unequivocally
favored ratification of the Constitution. His position offers considerable insight into the Federalist
position.”).

34 See also ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY
138 (1997) (describing the Federalists as “the champions of. . . nativism” and the Jeffersonians as “the
defenders .. . of aggressive civic racism”).

35 Naturalization Act of 1790, ch. 3, 1 Stat. 103.

36 U.S. CONST. art. I, § 8, cl. 4.

these States” by obstructing immigration and failing to pass “Laws for Naturalization
of Foreigners.”37

However, the Founders did not believe immigration should be unconstrained.
In 1802 Alexander Hamilton wrote that “foreigners will generally be apt to bring with
them attachments to the persons they have left behind; to the country of their
nativity, and to its particular customs and manners” and may not possess “that
temperate love of liberty, so essential to real republicanism.”®® Moreover, Hamilton
expressed fears that the United States “already felt the evils of incorporating a large
number of foreigners into their national mass; it has served very much to divide the
community and to distract our councils, by promoting in different classes different
predilections in favor of particular foreign nations, and antipathies against others.”?9
Although Hamilton claimed he was not calling for “a total prohibition of the right of
citizenship to strangers,”4° his comments can hardly be construed as advocating for
open borders and unregulated immigration. Crucially, Hamilton’s comments were
solely a reaction to immigration from Europe, i.e., White immigrants. The idea of
permitting non-White immigration (aside from within the hulls of slave ships), much
less permitting non-White naturalization, does not to appear to have been
countenanced by any of the Founders. Thus, unsurprisingly, the first permanent
federal regulation of immigration, passed in 18038, punished the importation of “any
... person of colour... into any port or place of the United States, which port or
place shall be situated in any state which by law has prohibited or shall prohibit the
admission or importation of such . . . person of colour.”4! With regards to
naturalization, Chin & Finkelman succinctly note that “everyone at the Convention
would have understood that a ‘uniform Rule of Naturalization’ would be tied to
race.”42 Thus, the 1790 Naturalization Act “discouraged the immigration of non-
White people from other countries by creating legal barriers to their economic and
political participation.”4%

37 See THE DECLARATION OF INDEPENDENCE para. 9 (U.S. 1776).

38 Alexander Hamilton, The Examination Number VIII, N.Y. EVENING POST, Jan. 12, 1802,
reprinted in 25 THE PAPERS OF ALEXANDER HAMILTON, July 1800—Apr. 1802, at 495 (Harold C. Syrett,
ed., Columbia University Press 1977), https://founders.archives.gov/documents/Hamilton/01-25-02-
0282.

39 Td.

40 Id.

41 Gabriel J. Chin & Paul Finkelman, The "Free White Person" Clause of the Naturalization Act
of 1790 as Super-Statute, 65 WM. & Mary L. REV. 1047, 1079 n.162 (2024) (citing Act of Feb. 28, 1803,
ch. 10, 2 Stat. 205). The application of the law to “any state which by law has prohibited or shall
prohibit the admission or importation of such . . . person of colour” was likely done solely to comply
with contemporary constitutional restrictions on the congressional power to control immigration. See
U.S. Const. art. I, § 9, cl. 1 “The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one
thousand eight hundred and eight”).

42 Td. at 1067.

43 Td, at 1057.

There exists little in the way of concrete evidence on the nationalist perceptions
and beliefs of the broader public regarding American identity when the Constitution
was ratified. Nonetheless, as will be seen further shortly, the phrase “the People”, as
used within the Constitution, was a term of art to refer to the body politic. As has
been shown, the consensus viewpoint among the founding generation’s political
leaders confirms that they viewed the body politic in recognizably nationalistic and
racial terms. According to Chin & Finkelman, “whether or not they supported slavery,
a majority of [the Founders] unambiguously conceived of the United States as a White
country.”44 It may be assumed that the consensus view of the founding generation’s
leaders on such an important, fundamental point reflected their constituents’ views.
Thus, under an original public meaning analysis, as under the original intent
analysis, references to “the People” and “posterity” must likewise be interpreted in a
nationalist light.

“The People” as Nation: Verdugo-Urquidez and Heller

Recent, powerful support for the proposition that “the People” is a phrase
sounding in nationalism comes not from the realm of immigration and naturalization
law, but in two cases interpreting the scope of two Bill of Rights amendments. In
United States v. Verdugo-Urquidez, Chief Justice William Rehnquist applied a
textualist analysis to conclude that the Fourth Amendment’s reference to “the people”
indicated that “the purpose of the Fourth Amendment was to protect the people of
the United States against arbitrary action by their own Government,” and therefore
the amendment could not “restrain the actions of the Federal Government against
aliens outside of the United States territory.”4° The use of the term “the people,” in
contrast with the use of the term “person” or “accused” elsewhere in the Constitution,
demonstrated that the phrase was a “term of art employed in select parts of the
Constitution” and “refers to a class of persons who are part of a national community
or who have otherwise developed sufficient connection with this country to be
considered part of that community.”4® To bolster this conclusion, Rehnquist also
applied an originalist analysis, noting the constitutional permissibility of
congressional grants of letters of marque and reprisal, to support the claim that
“[tlhere is likewise no indication that the Fourth Amendment was understood by
contemporaries of the Framers to apply to activities of the United States directed
against aliens in foreign territory or in international waters.”47

Rehnquist’s opinion in Verdugo-Urquidez was joined by four other justices,
including Justice Anthony Kennedy. However, Kennedy also filed a concurring
opinion stating that he could not “place any weight on the reference to ‘the people’ in

44 Td. at 1048.

45 United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990).
46 Td. at 265-66.

47 See id. at 267-68.

the Fourth Amendment as a source of restricting its protections.”48 Additionally,
Kennedy stated his belief that “[ilf the search had occurred in a residence within the
United States, ... the full protections of the Fourth Amendment would apply.”49
Kennedy’s interpretation, in granting Fourth Amendment protection to aliens within
the United States’ interior, clearly diminishes the privilege of American identity and
citizenship along with the exclusionary significance of the phrase “the People.”
Neither result is desirable under national constitutionalism, which seeks to reach
decisions which emphasize and give substance to the benefits of citizenship and
national belonging. On the other hand, Rehnquist’s two-prong interpretation of “the
people” in the Fourth Amendment (persons who belong to a national community or
have a sufficient connection with this country to be considered a part of it) leaves
much to be desired as well. The first prong is laughably non-specific. Verdugo-
Urquidez was, after all, part of “a national community” (he was a Mexican citizen).
Obviously, it is the American national community which “the People” of the
Constitution belong to, and Rehnquist should have made that explicitly clear.
However, this is implicitly clear in the whole opinion and as a matter of common
sense.

Nebulous writing aside, Rehnquist’s second prong may degrade the role of “the
People” in the constitutional framework more than Kennedy’s interpretation would.
Suggesting that an individual might develop a sufficient connection with this country
to be considered a part of the People without joining our national community through
naturalization would give non-nationals a claim of right to participate in popular
sovereignty. If non-nationals may be a part of the People, and the People are
sovereign, then what grounds would exist (particularly in light of the general trend
of post-World War II equal protection jurisprudence) to exclude a resident alien adult
with such a “sufficient connection” from the franchise given that “sovereignty confers
on the people the right to choose freely their representatives to the National
Government?”>° Such an absurd result cannot be entertained. The exclusionary roots

48 Td. at 276 (Kennedy, J., concurring).
49 Td. at 278.

50 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 794 (1995) (acknowledging “the critical
postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right
to choose freely their representatives to the National Government.”) (citing Powell v. McCormack, 395
U.S. 486, 541 n. 76 (1969)). See also Gerald M. Rosberg, Aliens and Equal Protection: Why Not the
Right To Vote?, 75 MICH. L. REV. 1092, 1136 (1977) (concluding that the denial of the right to vote to
resident aliens “can only be justified on the basis of some compelling state interest” and “it is far from
clear that it can, in fact, be justified under that exacting standard”). Compare Harper v. Virginia State
Bd. of Elections, 383 U.S. 663, 666 (1966) (“Our cases demonstrate that the Equal Protection Clause
of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously
discriminate.”), with Graham v. Richardson, 403 U.S. 365, 376 (1971) (holding that “a state statute
that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided
in the United States for a specified number of years violate the Equal Protection Clause”), and In re
Griffiths 413 U.S. 717, 729 (1978) (holding that conditioning bar admission on citizenship violates the
Equal Protection Clause). That individuals like Rosberg advocate for the extension of the franchise to
aliens proves that national constitutionalist jurists must be cautious with their language and not
permit an opening for anti-national constitutionalists to continue their assault on the sanctity of the

10

of American identity, the traditional importance of citizenship and the franchise in
our political process, and the fact that (unlike citizens) aliens may be expelled at the
whim of the federal government,®! all suggest that aliens are second-class persons
under the Constitution. It is the duty of judges, empowered by the truly sovereign
American people, to ensure that aliens remain second-class persons under the
Constitution and are prevented from exercising any right which properly belongs to
the People alone until they are naturalized—if they are naturalizable.

Rehnquist also failed to describe the identity of the People and the national
community that they belong to. However, in District of Columbia v. Heller the Court,
in an opinion by Justice Antonin Scalia, directly acknowledged the historical, racial,
and exclusionary identity of the People to support holding that the Second
Amendment’s right to bear arms is an individual right belonging to all of the People.
Scalia first explained that “in all six other provisions of the Constitution that mention
‘the people, the term unambiguously refers to all members of the political
community, not an unspecified subset” and then cited the two-prong definition of the
People provided in Verdugo-Urquidez in support of this conclusion.®? Later in the
opinion, Scalia cited two antebellum state court cases “holding that the Constitution
did not extend to free blacks”®? in order to show that in the early 19t century many
state courts “indicated that the Second Amendment right to bear arms was an
individual right unconnected to militia service, though subject to certain
restrictions.”>4 Notably, Scalia made no effort to criticize these opinions’ holding that
Blacks did not possess the right to bear arms. In arguing that the Second Amendment
applies to all of the People and citing these antebellum cases in support of his
reasoning, Scalia implicitly acknowledged that in the antebellum period Blacks were
not a part of the People. Incredibly, 151 years after Dred Scott, five members of the
Court (with no member undercutting or qualifying the opinion’s analysis in a

People, their privileged citizenship, and their sovereignty. On the other hand, it may be possible that
Rehnquist felt required to include this second prong (which, given the basis for the opinion’s holding,
is essentially dictum) to secure the votes for his opinion. Notably, elsewhere in the opinion, Rehnquist
implies that criminal infiltrators may not be entitled to the same level of Fourth Amendment
protection as citizens, and any cases whose holdings assumed that they were entitled to equal Fourth
Amendment protection would be inapposite were the issue directly before the court. See Verdugo-
Urquidez, 494 U.S. 259, 272 (stating that prior decisions are “not dispositive of how the Court would
rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely
before us”). Nonetheless, Rehnquist seems to concede that lawful resident aliens have Fourth
Amendment rights. See id. at 270-71. This was an unwise and anti-national constitutionalist
concession given that lawful resident aliens, being unnaturalized (and potentially unnaturalizable),
are not a part of the People, and the text of the Fourth Amendment plainly does not provide protections
to those who are not a part of the People.

51 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (“Courts have long
recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the
Government's political departments largely immune from judicial control.”).

52 District of Columbia. v. Heller, 554 U.S. 570, 580 (2008)

53 Jd. at 611 (citing Aldridge v. Commonwealth, 4 Va. 447, 2 Va. Cas. 447, 449 (Gen.Ct.); Waters v.
State, 1 Gill 302, 309 (Md.1843))
54 Id.

11

concurring opinion) ostensibly vindicated the legal correctness of Chief Justice Roger
Taney’s ruling that Blacks “formed no part of the people who framed and adopted [the
Declaration of Independence]”®> and were not a part of “the sovereignty of the
States”5® or the sovereignty of the country as a whole, which led Taney to conclude
Blacks “had no rights which the white man was bound to respect.”57

National Constitutionalism Distilled for Jurists

The foregoing analysis indicates that national constitutionalism relies on three
primary points. First, national constitutionalism promotes and guards popular
sovereignty. Second, national constitutionalism relies on the distinction between the
superior constituent power of the sovereign People and the inferior constituted power
of the Constitution and government (the principal-agent analogy). Third, the People
share a biological relation describable by reference to the original understanding of
who formed the People—and who could be permitted to enter the ranks of the
People—in and about the time the Constitution was ratified. However, some
additional, derivative points must be expounded before national constitutionalism is
applied further.

As a consequence of acknowledging popular sovereignty, national
constitutionalism additionally adopts as a central tenet the principle that “[blecause
. agents derive their authority entirely from the existing constitution, they
implicitly lack the authority to destroy or replace the source of that power.”58
Moreover, national constitutionalism is proudly a results-oriented species of
jurisprudence. Similar to Dworkin’s moral reading of the Constitution, a national
reading of the Constitution (or of any language at issue) must be done in the light
which “does most credit to the nation” and the People because courts act as the
People’s agents.59 Specifically, a reading which degrades the power or privilege of the
People is impermissible in light of the implicit limitation on agents whereby they may
not destroy or replace the source of their power. This is especially true when an
alternative reading, no matter how strained, would not degrade the power or privilege
of the People. But when an alternative reading is completely impossible (which due
to the nationalist beliefs of the Founders will likely only occur when interpreting the
language of a statute or a constitutional amendment), that language should be
deemed unconstitutional.

55 Dred Scott v. Sandford, 60 U.S. 393, 410 (1857), superseded by constitutional amendment, U.S.
CONST. amend. XIV.

56 Jd. at 419.

57 Td. at 407.

58 Jonathan L. Marshfield, Forgotten Limits on the Power to Amend State Constitutions, 114 NW.
UNIV. L. REV. 65, 79 (2019).

59 RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 11
(1996). See also League v. De Young, 52 U.S. 185, 203 (1850) (“The Constitution of the United States
was made by, and for the protection of, the people of the United States.”).

12

Relatedly, national constitutionalism adopts Schmitt’s distinction between the
Constitution as a whole and its component provisions.® The Constitution is the
People’s authorization for the use of power by the governmental agent for the benefit
of the People and the terms upon which that power is to be exercised. If an individual
constitutional provision would prevent the effective, beneficial exercise of power by
government on behalf of the People, particularly when the would-be exercise of power
is directed at those who are not a part of the People, judges should consider permitting
a necessary, limited exception to the individual provision, at least in times of
emergency. This distinction between constitutional provision and the Constitution in
toto is textually justified, because judges must constitutionally take an oath only “to
support this Constitution,” not to always support every single one of its provisions.®1

National Constitutionalism Applied to Immigration Policy, Naturalization Law, and
Alienage Classifications

In 1870, the privilege of naturalization was extended to “to aliens of African
nativity and to persons of African descent,” 6&2 although foreign Blacks continued to
face difficulties immigrating in practice.6? However, since the second half of the 20th
century, mass immigration—both “legal” and illegal—has challenged the sovereignty
and demographic security of the People in an increasingly severe and unprecedented
way. In 1940 the United States was 89.8% White.®4 In 1952, the United States
government removed racial restrictions on naturalization in response to foreign
policy concerns but maintained a national quota system which de facto discriminated
against non-White immigration.© In 1965, the Immigration and Naturalization Act
(Hart-Celler) removed the national quota system that prevented mass non-White
immigration. That act, in addition to contemporaneous collapses in border security,
is in large part responsible for setting America on the path to becoming a minority-
White country by 2043.6 Criminal infiltration of the southern border has drastically

60 See SCHMITT, supra note 1, at 158 (arguing that “[plrotection of the constitution and protection
of every single constitutional provision are no more identical with one another than are the
inviolability of the constitution and that of every single constitutional provision” because “[wlhen every
single constitutional provision becomes ‘inviolable’ .. . the protection of the constitution in the positive
and substantial sense is sacrificed to the protection of the constitutional provision in the formal and
relative sense” which would make “the individual constitutional provision . . . an insurmountable
obstacle to an effective defense of the constitution”).

61 U.S. CONST. art. VI, cl. 3.

62 See Chin & Finkelman, supra note 41, at 1102.

63 See id. at 1102, n.313.

64 Campbell Gibson & Kay Jung, Historical Census Statistics on Population Totals By Race, 1790
to 1990, and by Hispanic Origin, 1970 to 1990, for the United States, Regions, Divisions, and States,
19 tbl. 1 (U.S. Census Bureau, Working Paper No. 56, 2002).

65 See id. at 1110.

66 See Gabriel J. Chin & Douglas M. Spencer, Did Multicultural America Result from a Mistake -
The 1965 Immigration Act and Evidence from Roll Call Votes, 2015 UNIV. ILL. L. REV. 1289, 1242
(2015) (citing Press Release, U.S. Census Bureau, U.S. Census Bureau Projections Show a Slower

13

increased in recent years, further accelerating the People’s dispossession.®? Moreover,
the application of equal protection principles to both lawful immigrants and criminal
infiltrators, in addition to the Court’s interpretation of the Fourteenth Amendment’s
Citizenship Clause, has further complicated the immigration question by blocking
legal avenues for disincentivizing undesirable immigration and removing undesired
immigrants. The challenge non-White immigration and naturalization pose to the
sovereignty of the People represents a constitutional emergency our Founders
seemingly never anticipated. This emergency threatens to overturn the Constitution
itself by turning American government against the People and securing government’s
benefits primarily for other peoples and their posterity.

There are multiple areas where national constitutionalism should be applied
by courts to rescue the People from this emergency. First, courts should give effect to
the Constitution’s Guarantee Clause and order the federal government to secure our
borders against criminal infiltrators and the transnational criminal organizations
which bring those infiltrators (and other contraband) into the country’s interior.
Second, courts should subject immigration and naturalization laws to judicial review
and apply strict scrutiny to those laws permitting non-White immigration and
naturalization. Third, courts should stop applying equal protection to laws
discriminating against criminal infiltrators and apply rational basis review to
alienage classifications discriminating against lawful immigrants. Finally, courts
should not only reconsider constitutional birthright citizenship for children of
immigrants who are citizens or subjects of another country, but they should challenge
the constitutionality of the Fourteenth and Fifteenth amendments altogether.

Border Control, the Guarantee Clause, and the State War Power

To give states legal tools to fight back against criminal infiltration, courts
should give broad effect to claims for relief which demand that the federal
government secure the border pursuant to the Guarantee Clause or, alternatively,
recognize the permissibility of exercising the State War Power.

One of the few affirmative duties placed upon our federal government by the
Constitution is the requirement that it “protect each [state] against Invasion.”®8

Utilizing an original intent analysis, Dwyer describes the clause’s “protection against
invasion as providing security against ‘foreign hostility’ and ‘ambitious or vindictive

Growing, Older, More Diverse Nation a Half Century from Now (Dec. 12, 2012),
https://www.census.gov/newsroom/releases/archives/population/cbl2-243.html); AVIVA CHOMSKY,
UNDOCUMENTED: HOW IMMIGRATION BECAME ILLEGAL 184 (2014) (noting that “all types of immigration
from Latin America rose after 1965: temporary and permanent, legal and illegal”).

67 Ashley Wu, Why Illegal Border Crossings Are at Sustained Highs, N.Y. TIMES (Oct. 29, 2023),
https://www.nytimes.com/interactive/2023/10/29/us/illegal-border-crossings-data.html (showing that
the three years with the greatest number of annual southwestern border apprehensions in the 21st
century occurred in 2021, 2022, and 2023).

68 U.S. CONST. art. IV, § 4.

14

enterprises” which includes the activities of criminal smugglers.6? Dwyer concludes
her analysis of the meaning of the word “Invasion” in the Guarantee Clause by
breaking it down into three elements: “1) a hostile and organized external force 2)
conducting a purposeful intrusion on sovereign land 3) in furtherance of a
predetermined malicious objective.”7° Although, Dwyer unwisely concedes that
“allegal immigration in and of itself” does not amount to invasion,” she convincingly
argues that the activities of Mexican drug cartels—including the smuggling of
criminal infiltrators—do amount to invasion.”

Dwyer’s analysis strongly suggests that the federal government is obliged to
defend the nation from this invasion. Ordering government to affirmatively
implement a judicially crafted policy which government had heretofore been
unwilling to implement is not outside the ken of the judiciary.”? Thus, courts should
order the federal government to militarize the border, begin construction of border
defenses and barriers, and issue arrest or shoot to kill orders targeting criminal
infiltrators at the border. These policies would undoubtedly defeat the invasion, or at
least diminish its scope and force. Likewise, courts should order the federal
government to root out and deport criminal infiltrators in the interior. Additionally,
Dwyer suggests an alternative: courts should uphold state policies—enacted
pursuant to the State War Power—aimed at defeating the invasion against federal
Supremacy Clause challenges.74 Once exercising the State War Power is deemed
justified, it should be given a plenary scope, including the authority to deport criminal
infiltrators within their states.”

69 Heather Dwyer, The State War Power: A Forgotten Constitutional Clause, 33 UNIV. LA VERNE
L. REV. 319, 323 (2012) (citing THE FEDERALIST No. 43 (James Madison)).

70 Td. at 325.

71 Td. at 339. Criminal infiltrators express hostility towards our laws through their infiltration, are
organized insofar as they must prepare for their crime, purposefully intrude on our territory, and do
so in furtherance of the malicious objective of living among us without authorization (at minimum);
thus, per Dwyer, they are invaders.

72 [dat 342-352 (concluding that border states are “quite literally under invasion by drug cartels”).

73 See generally Cooper v. Aaron, 358 U.S. 1 (1958) (requiring Arkansas to implement a judicially
approved school integration plan); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971)
(permitting lower courts to order adherence to a judicially formulated school bussing schemes for the
purpose of integration). See alsoRelman Morin, AP Was There: Paratroops with bayonets escort Little
Rock 9, AP News (Sept. 24, 2017, 11:21 AM),
https://apnews.com/article/360439e805eb4db180fbfd52a7a0f5bb (describing how “l{hlardened
paratroopers, in battle dress and with bayonets at the ready” were used to forcibly integrate Little
Rock Central High School in Arkansas during the 1957-58 school year).

74 Dwyer, supra note 69, at 319 (describing the State War Power as “both antecedent to, and
affirmatively acknowledged in, the Constitution in Article I, section 10, clause 3 which states, “No
State shall, without the Consent of the Congress ... engage in War, unless actually invaded’)
(emphasis in original). See also id. at 355 (“This power is independent from federal action or approval
and cannot be expunged by a Supremacy claim.”).

7 See Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) (noting that exercise of “the war power”
is “largely immune from judicial inquiry or interference”).

15

Furthermore, although she rejects the approach, Dwyer also conducts an
original public meaning analysis, noting that “modern definitions of the word
invasion” include “aggression, assault, attack, encroachment, foray, hostile entry,
incursion, infiltration, and intrusion” and that “etymological research of the term
reveals that the meaning has not changed since at least the fifteenth century.”76 This
definition would seem to be broader, encompassing all forms of criminal infiltration
(not merely those of smugglers and cartel groups), and therefore permit more claims
of relief or permissible uses of the State War Power to combat criminal infiltration.
Given that crafting law to most effectively combat criminal infiltration is a clear goal
of national constitutionalism, jurists subscribing to the theory should aim to define
“Invasion” under its original public meaning.

Immigration and Naturalization Law

The principles of national constitutionalism have a relatively straightforward
application to immigration and naturalization law. If the government may not
destroy or replace the People, or otherwise usurp their sovereignty (or permit their
sovereignty to be usurped), and if the People are an identifiable, substantive, and
organic legal entity (and not merely the statistical collection of all people within the
United States), then government power to permit immigration or naturalization is
not plenary. National constitutionalism therefore advocates subjecting to judicial
review—with the highest level of scrutiny—all attempts by the federal government
to “dissolve the people and elect another’”” through immigration and naturalization
policies which have the effect of altering the traditional, racial demographic balance
of the United States and thereby degrading the People’s power and privileges.
Accordingly, Taney’s dictum in Dred Scott that Congress “may, if they think proper,
authorize the naturalization of anyone, of any color, who was born under allegiance
to another Government”? is anathema to the implicit limitations, entailed by popular
sovereignty, placed upon the constituted power of the nation-state and should be
rejected as a matter of law.

The effect of this would simply be a return to the pre-1870 status quo whereby
only Whites could typically immigrate and seek naturalization.79 Non-Whites would

76 Id. at 323 (citing ROBERT BARNHART, THE BARNHART CONCISE DICTIONARY OF ETYMOLOGY: THE
ORIGINS OF AMERICAN ENGLISH WORDS 397 (1995)).

77 Bertolt Brecht, The Solution (1959), reprinted in BERTOLT BRECHT POEMS 1913-1956, 440 (John
Willett and Ralph Manheim, eds., Methuen 1976).

7860 U.S. at 419.

79 This is a historically workable standard. See generally IAN HANEY LOPEZ, WHITE By LAW 2-7
(2006) (describing various court cases in American history aimed at determining if the petitioner was
White, and explaining how “[t]hough the courts offered many different rationales to justify the various
racial divisions they advanced, two predominated: common knowledge and scientific evidence”). The
use of artificial intelligence presents another possible method for determining race. See generally Judy
Wawira Gichoya et al., AJ recognition of patient race in medical imaging: a modelling study, 4 LANCET
DiciT. HEALTH e406 (finding “that AI can accurately predict self-reported race, even from corrupted,
cropped, and noised medical images, often when clinical experts cannot”). Needless to say, Congress
did not abandon the 1790 rule because it proved impossible to determine who was White.

16

still be able to visit the U.S. without becoming residents, as tourism is not
immigration. Moreover, if immigration and naturalization laws are subjected to strict
scrutiny, then some exceptionally talented non-Whites, who possess skills or
knowledge possessed by very few natives, may yet be permitted to immigrate
provided their skills or knowledge and presence in the country are necessary for
furthering a compelling governmental interest.8° However, courts should ensure that
the compelling governmental interest is very compelling. The immigration of a non-
White scientist who can demonstrably contribute towards curing cancer through
research only he can conduct (and which can only be effectively conducted in America)
would be one such compelling interest, but a purported need to import non-White
menial labor is not compelling at all. Moreover, under this framework non-White
immigration should never lead to naturalization, as naturalization is almost certainly
unnecessary and thus would not comport with policy being narrowly tailored.

Alienage Classifications and the Citizenship Clause

In line with national constitutionalism’s goal of returning prestige and
privilege to American citizenship, and pursuant to the principle that the Constitution
is to be given the reading that best serves the nation, alienage classifications affecting
criminal infiltrators and relating to the provisioning of government benefits and
employment opportunities should no longer be subjected to equal protection analysis.
The Court’s decision in Plyler v. Doe® should be overruled posthaste. Once Plyler is
consigned to the dustbin of history, the State War Power is recognized, and
immigration and naturalization laws are subjected to strict scrutiny, states will be
free to enact laws like that at issue in Plyler and like California’s Proposition 187,%2
which was deemed unconstitutional on Supremacy Clause grounds,’° to
disincentivize criminal infiltration and lessen its pernicious effects on the public
purse. Moreover, because lawful aliens have no fundamental right to be in the country
and are not citizens, they should be denied a constitutional right to travel.®4 Thus,
alienage classifications impacting lawful aliens—including restrictions on their entry

80 Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 532 (2022) (stating that policy can only survive
strict scrutiny upon a showing that the policy “servels] a compelling interest and [is] narrowly tailored
to that end”) (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, n.1
(1993)).

81 Plyler v. Doe, 457 U.S. 202 (1982) (holding that a state’s refusal to fund the education of
unlawfully present children of criminal infiltrators had no rational basis and was thus
unconstitutional).

82 See Peter H. Schuck, The Message of Proposition 187, 26 PAC. L. J. 989, 990 (1995) (stating that
Proposition 187’s “most controversial provisions would bar anyone who is not a citizen, a legal
permanent resident, or a legal temporary visitor from receiving public social services, health care, and
education”).

83 See League of United Latin Am. Citizens v. Wilson, 997 F. Supp. 1244, 1261 (C.D. Cal. 1997).

84 See Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (“We are all citizens of the United States;
and, as members of the same community, must have the right to pass and repass through every part
of it without interruption, as freely as in our own States.") (citing Passenger Cases, 7 How. 283, 492
(1849)).

17

into a state—should be subject to mere rational basis review and enjoy a presumption
of constitutionality.

National constitutionalists should also endeavor to overturn the holding in
United States v. Wong Kim Ark, establishing the rule of birthright citizenship for the
children of most foreign nationals born on U.S. soil. As pointed out in Chief Justice
Melville Fuller’s dissent in Wong Kim Ark, the Citizenship Clause’s qualifier “and
subject to the jurisdiction thereof’ can be read as synonymous with the words “and
not subject to any foreign power” which would exclude from birthright citizenship, as
the dissent argued was originally intended, “the children of aliens, whose parents
owed local and temporary allegiance merely, remaining subject to a foreign power by
virtue of the tie of permanent allegiance, which they had not severed by formal
abjuration or equivalent conduct.”®> This reading would give more prestige to the
concept of American citizenship and membership within the People, which was
originally conceived of as a group possessing common blood (but not necessarily
common birthplaces). At minimum, courts should limit Wong Kim Ark’s holding, as
the Tenth Circuit properly did in 2021 when it decided to apply the Insular Cases
instead of Wong Kim Ark to hold that birthright citizenship did not inure in those
born in U.S. territories.86 Moreover, courts should adopt Judge Richard Posner’s view
that providing birthright citizenship to children of criminal infiltrators born in the
United States is not constitutionally mandated.®’ Indeed, if those children are non-
Whites, then courts should move to categorically prevent that grant of citizenship.

Finally, courts should also begin to question the constitutionality of the
Fourteenth and Fifteenth amendments as a whole, for two reasons. First, these
amendments were ratified contrary to the Article V process. Suthon Jr. notes the
military occupation of the south during Reconstruction, the forcible reorganization of

85 United States v. Wong Kim Ark, 169 U.S. 649, 719-22 (1898) (Fuller, C.J., dissenting) (relying
on the use of the words “and not subject to any foreign power” by the 1866 Civil Rights Act, which was
passed by the same Congress which passed the Fourteenth Amendment, in granting citizenship to
those born on U.S. soil; and relying on statements by Senators Trumbull and Johnson that the qualifier
excludes the children of those “owing allegiance” or “subject to some foreign power” from citizenship).
But see Matthew Ing, Birthright Citizenship, Illegal Aliens, and the Original Meaning of the
Citizenship Clause, 45 AKRON L. REV. 719, 736 (2015) (endorsing the Wong Kim Ark holding and
advocating for its extension to children of criminal infiltrators born in the U.S., but conceding that
“because the [Citizenship] Clause constitutionalized the citizenship provision in the Civil Rights Act
of 1866, we can therefore impute that provision’s expected applications to the Clause itself’).

86 See Fitisemanu v. United States, 1 F.4th 862, 871 (10th Cir. 2021), cert. denied, 143 S.Ct. 362
(2022).

87 See Oforji v. Ashcroft, 354 F.3d 609, 619-21 (7th Cir. 2003) (Posner, J., concurring) (arguing
that “Congress should rethink .. . awarding citizenship to everyone born in the United States...
including the children of illegal immigrants whose sole motive in immigrating was to confer U.S.
citizenship on their as yet unborn children,” noting that “the purpose of the [Citizenship Clause] was
to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats
and heads of state shows that Congress does not read the citizenship clause of the Fourteenth
Amendment literally,” and concluding that “Congress would not be flouting the Constitution if it
amended the Immigration and Nationality Act to put an end to the nonsense”).

18

the occupied states’ governments, and the requirement that the southern states ratify
these amendments before the occupation was lifted and their elected representatives
would be accepted into Congress “constituteld] an infraction of the amendment
procedure ordained by Article V of the Constitution.”®° Second, the amendments are
substantively unconstitutional. If, as Albert argues, the Fourteenth and Fifteenth
amendments represent a “constitutional dismemberment” which “is incompatible
with the existing framework of a constitution because it seeks to achieve a conflicting
purpose,” then Article V would not permit such Amendments to be made, given that
Article V only permits for “mere amendment|].”8° Albert views the Fourteenth and
Fifteenth Amendments as writing “into the Constitution a ringing declaration of the
equality of all persons,”®° and the Court has explicitly held the former amendment
prohibits “measures designed to maintain White Supremacy.”?! However, given that
the United States was founded as a race-based nation-state for the preservation and
betterment of White Americans (the People), as clearly laid out in the Preamble and
revealed by our history, it is difficult to see how these amendments (or at least the
way they have been interpreted in the post-World War II era) do not amount to
unconstitutional, revolutionary usurpations by the constituted government power.

Conclusion

Our Constitution will survive only if “the people share a common, historic
commitment to certain simple but fundamental principles which preserve their
freedom.”92 One of those principles, accepted by our Founders who as a whole
“unambiguously conceived of the United States as a White country,”%? was
nationalism—specifically, racial nationalism. If we abandon that principle while
turning over America to a non-White majority, a majority that will not share a
common, historic commitment to anything, what else shall we abandon along the
way? If non-Whites believe that America’s White nationalist founding “deserves a
place of dishonor’ in our history, then—given the fundamentality of this principle

88 See generally Walter J. Suthon Jr., Dubious Origin of the Fourteenth Amendment, 28 TUL. L.
REV. 22, 41-44 (1953). See also id. at 29 (contrasting this process with the regular process used to
ratify the Thirteenth Amendment).

89 See Richard Albert, Constitutional Amendment and Dismemberment, 43 YALE J. INTL L. 1, 4-5
(2018); see also Sanford Levinson, Accounting for Constitutional Change, 8 Const. Comment. 409, 414—
15 (citing Representative Boutwell, a “warm supporter” of the Thirteenth Amendment, who conceded
that “the amendment power was not unlimited” and “suggested that article V did not authorize
amendments that would ‘establish slavery, or... invite the King of Dahomey to rule over this country’
insofar as they would contravene the purposes of the Constitution as laid out in the Preamble”).

90 Jd. at 4.

91 See Loving v. Virginia, 388 U.S. 1, 11-12 (1967).

92 See Chavez v. Martinez, 538 U.S. 760, 794 (2003) (Kennedy, J., concurring in part).

93 Chin & Finkelman, supra note 41, at 1048.

94 See Id.

19

in the original constitutional framework—what is to stop any other constitutional
provision from being similarly repudiated?

The Supreme Court and inferior federal courts have the power to arrest the
dispossession of White America. All they must do is substitute bad landmark
precedent for good landmark precedent. Failure to do so is not judicial humility, but,
at best, judicial surrender in the face of a terrible crime. At worst, it is complicity in
that crime. The People cannot be expected to meekly swallow this demographic
assault on their sovereignty. If the People are not granted relief from the
government—which includes the judiciary—then, if they are to survive as masters in
the land of their ancestors, they must exercise “their revolutionary right to
dismember or overthrow” the government.% And that will be a process which no
deskbound jurist can gleefully look forward to; for it will be a controversy decided not
by the careful balance of Justitia’s scales, but by the gruesome slashing of her sword.

95 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861),
https://avalon.law.yale.edu/19th_century/lincoln1.asp.

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